17 Testing persons for the presence of specified Class A drugs

17.1 This section of Code C applies only in selected police stations in police areas where the provisions for drug testing under section 63B of PACE (as amended by section 5 of the Criminal Justice Act 2003 and section 7 of the Drugs Act 2005) are in force and in respect of which the Secretary of State has given a notification to the relevant chief officer of police that arrangements for the taking of samples have been made. Such a notification will cover either a police area as a whole or particular stations within a police area. The notification indicates whether the testing applies to those arrested or charged or under the age of 18 as the case may be and testing can only take place in respect of the persons so indicated in the notification. Testing cannot be carried out unless the relevant notification has been given and has not been withdrawn. See Note 17F.

17.2 A sample of urine or a non-intimate sample may be taken from a person in police detention for the purpose of ascertaining whether they have any specified Class A drug in their body only where they have been brought before the custody officer and:

(a) either the arrest condition, see paragraph 17.3, or the charge condition, see paragraph

17.4 is met;

(b) the age condition see paragraph 17.5, is met;

(c) the notification condition is met in relation to the arrest condition, the charge condition, or the age condition, as the case may be. (Testing on charge and/or arrest must be specifically provided for in the notification for the power to apply. In addition, the fact that testing of under 18s is authorised must be expressly provided for in the notification before the power to test such persons applies.). See paragraph 17.1; and

(d) a police officer has requested the person concerned to give the sample (the request condition).

17.3 The arrest condition is met where the detainee:

(a) has been arrested for a trigger offence, see Note 17E, but not charged with that offence; or

(b) has been arrested for any other offence but not charged with that offence and a police officer of inspector rank or above, who has reasonable grounds for suspecting that their misuse of any specified Class A drug caused or contributed to the offence, has authorised the sample to be taken.

17.4 The charge condition is met where the detainee:

(a) has been charged with a trigger offence, or

(b) has been charged with any other offence and a police officer of inspector rank or above, who has reasonable grounds for suspecting that the detainee’s misuse of any specified Class A drug caused or contributed to the offence, has authorised the sample to be taken.

17.5 The age condition is met where:

(a) in the case of a detainee who has been arrested but not charged as in paragraph 17.3, they are aged 18 or over;

(b) in the case of a detainee who has been charged as in paragraph 17.4, they are aged 14 or over.

17.6 Before requesting a sample from the person concerned, an officer must:

(a) inform them that the purpose of taking the sample is for drug testing under PACE. This is to ascertain whether they have a specified Class A drug present in their body;

(b) warn them that if, when so requested, they fail without good cause to provide a sample they may be liable to prosecution;

(c) where the taking of the sample has been authorised by an inspector or above in accordance with paragraph 17.3(b) or 17.4(b) above, inform them that the authorisation has been given and the grounds for giving it;

(d) remind them of the following rights, which may be exercised at any stage during the period in custody:

(i) the right to have someone informed of their arrest [see section 5];

(ii) the right to consult privately with a solicitor and that free independent legal advice is available [see section 6]; and

(iii) the right to consult these Codes of Practice [see section 3].

17.7 In the case of a person who has not attained the age specified in section 63B(5A) of PACE—

(a) the making of the request for a sample under paragraph 17.2(d) above;

(b) the giving of the warning and the information under paragraph 17.6 above; and

(c) the taking of the sample,

may not take place except in the presence of an appropriate adult. See Note 17G.

17.8 Authorisation by an officer of the rank of inspector or above within paragraph 17.3(b) or 17.4(b) may be given orally or in writing but, if it is given orally, it must be confirmed in writing as soon as practicable.

17.9 If a sample is taken from a detainee who has been arrested for an offence but not charged with that offence as in paragraph 17.3, no further sample may be taken during the same continuous period of detention. If during that same period the charge condition is also met in respect of that detainee, the sample which has been taken shall be treated as being taken by virtue of the charge condition, see paragraph 17.4, being met.

17.10 A detainee from whom a sample may be taken may be detained for up to six hours from the time of charge if the custody officer reasonably believes the detention is necessary to enable a sample to be taken. Where the arrest condition is met, a detainee whom the custody officer has decided to release on bail without charge may continue to be detained, but not beyond 24 hours from the relevant time (as defined in section 41(2) of PACE), to enable a sample to be taken.

17.11 A detainee in respect of whom the arrest condition is met, but not the charge condition, see paragraphs 17.3 and 17.4, and whose release would be required before a sample can be taken had they not continued to be detained as a result of being arrested for a further offence which does not satisfy the arrest condition, may have a sample taken at any time within 24 hours after the arrest for the offence that satisfies the arrest condition.

17.12 The following must be recorded in the custody record:

(a) if a sample is taken following authorisation by an officer of the rank of inspector or above, the authorisation and the grounds for suspicion;

(b) the giving of a warning of the consequences of failure to provide a sample;

(c) the time at which the sample was given; and

(d) the time of charge or, where the arrest condition is being relied upon, the time of arrest and, where applicable, the fact that a sample taken after arrest but before charge is to be treated as being taken by virtue of the charge condition, where that is met in the same period of continuous detention. See paragraph 17.9.

17.13 A sample may only be taken by a prescribed person. See Note 17C.

17.14 Force may not be used to take any sample for the purpose of drug testing.

17.15 The terms “Class A drug” and “misuse” have the same meanings as in the Misuse of Drugs Act 1971. “Specified” (in relation to a Class A drug) and “trigger offence” have the same meanings as in Part III of the Criminal Justice and Court Services Act 2000.

17.16 Any sample taken:

(a) may not be used for any purpose other than to ascertain whether the person concerned has a specified Class A drug present in his body; and

(b) can be disposed of as clinical waste unless it is to be sent for further analysis in cases where the test result is disputed at the point when the result is known, including on the basis that medication has been taken, or for quality assurance purposes.

17.17 Under the provisions of Part 3 of the Drugs Act 2005, where a detainee has tested positive for a specified Class A drug under section 63B of PACE a police officer may, at any time before the person’s release from the police station, impose a requirement on the detainee to attend an initial assessment of their drug misuse by a suitably qualified person and to remain for its duration. Where such a requirement is imposed, the officer must, at the same time, impose a second requirement on the detainee to attend and remain for a follow-up assessment. The officer must inform the detainee that the second requirement will cease to have effect if, at the initial assessment they are informed that a follow-up assessment is not necessary These requirements may only be imposed on a person if:

(a) they have reached the age of 18

(b) notification has been given by the Secretary of State to the relevant chief officer of police that arrangements for conducting initial and follow-up assessments have been made for those from whom samples for testing have been taken at the police station where the detainee is in custody.

17.18 When imposing a requirement to attend an initial assessment and a follow-up assessment the police officer must:

(a) inform the person of the time and place at which the initial assessment is to take place;

(b) explain that this information will be confirmed in writing; and

(c) warn the person that they may be liable to prosecution if they fail without good cause to attend the initial assessment and remain for its duration and if they fail to attend the follow-up assessment and remain for its duration (if so required).

17.19 Where a police officer has imposed a requirement to attend an initial assessment and a follow-up assessment in accordance with paragraph 17.17, he must, before the person is released from detention, give the person notice in writing which:

(a) confirms their requirement to attend and remain for the duration of the assessments; and

(b) confirms the information and repeats the warning referred to in paragraph 17.18.

17.20 The following must be recorded in the custody record:

(a) that the requirement to attend an initial assessment and a follow-up assessment has been imposed; and

(b) the information, explanation, warning and notice given in accordance with paragraphs 17.17 and 17.19.

17.21 Where a notice is given in accordance with paragraph 17.19, a police officer can give the person a further notice in writing which informs the person of any change to the time or place at which the initial assessment is to take place and which repeats the warning referred to in paragraph 17.18(c).

17.22 Part 3 of the Drugs Act 2005 also requires police officers to have regard to any guidance issued by the Secretary of State in respect of the assessment provisions.

17A When warning a person who is asked to provide a urine or non-intimate sample in accordance with paragraph 17.6(b), the following form of words may be used:

“You do not have to provide a sample, but I must warn you that if you fail or refuse without good cause to do so, you will commit an offence for which you may be imprisoned, or fined, or both”.

Where the Welsh language is appropriate, the following form of words may be used:

“Does dim rhaid i chi roi sampl, ond mae’n rhaid i mi eich rhybuddio y byddwch chi’n cyflawni trosedd os byddwch chi’n methu neu yn gwrthod gwneud hynny heb reswm da, ac y gellir, oherwydd hynny, eich carcharu, eich dirwyo, neu’r ddau.”

17B A sample has to be sufficient and suitable. A sufficient sample is sufficient in quantity and quality to enable drug-testing analysis to take place. A suitable sample is one which by its nature, is suitable for a particular form of drug analysis.

17C A prescribed person in paragraph 17.13 is one who is prescribed in regulations made by the Secretary of State under section 63B(6) of the Police and Criminal Evidence Act 1984. [The regulations are currently contained in regulation SI 2001 No. 2645, the Police and Criminal Evidence Act 1984 (Drug Testing Persons in Police Detention) (Prescribed Persons) Regulations 2001.]

17D Samples, and the information derived from them, may not be subsequently used in the investigation of any offence or in evidence against the persons from whom they were taken.

17E Trigger offences are:

1. Offences under the following provisions of the Theft Act 1968:

section 1 (theft)

section 8 (robbery)

section 9 (burglary)

section 10 (aggravated burglary)

section 12 (taking a motor vehicle or other conveyance without authority) section 12A (aggravated vehicle-taking)

section 22 (handling stolen goods)

section 25 (going equipped for stealing etc.)

2. Offences under the following provisions of the Misuse of Drugs Act 1971, if committed in respect of a specified Class A drug:–

section 4 (restriction on production and supply of controlled drugs) section 5(2) (possession of a controlled drug)

section 5(3) (possession of a controlled drug with intent to supply)

3. Offences under the following provisions of the Fraud Act 2006: section 1 (fraud)

section 6 (possession etc. of articles for use in frauds) section 7 (making or supplying articles for use in frauds)

3A. An offence under section 1(1) of the Criminal Attempts Act 1981 if committed in respect of an offence under

(a) any of the following provisions of the Theft Act 1968:

section 1 (theft)

section 8 (robbery)

section 9 (burglary)

section 22 (handling stolen goods)

(b) section 1 of the Fraud Act 2006 (fraud)

4. Offences under the following provisions of the Vagrancy Act 1824:

section 3 (begging)

section 4 (persistent begging)

17F The power to take samples is subject to notification by the Secretary of State that appropriate arrangements for the taking of samples have been made for the police area as a whole or for the particular police station concerned for whichever of the following is specified in the notification:

(a) persons in respect of whom the arrest condition is met;

(b) persons in respect of whom the charge condition is met;

(c) persons who have not attained the age of 18.

Note: Notification is treated as having been given for the purposes of the charge condition in relation to a police area, if testing (on charge) under section 63B(2) of PACE was in force immediately before section 7 of the Drugs Act 2005 was brought into force; and for the purposes of the age condition, in relation to a police area or police station, if immediately before that day, notification that arrangements had been made for the taking of samples from persons under the age of 18 (those aged 14-17) had been given and had not been withdrawn.

17G Appropriate adult in paragraph 17.7 means the person’s–

(a) parent or guardian or, if they are in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or

(b) a social worker of a local authority; or

(c) if no person falling within (a) or (b) above is available, any responsible person aged 18 or over who is not:

a police officer;

employed by the police;

under the direction or control of the chief officer of police force; or

a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions;

whether or not they are on duty at the time.